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It’s Perfectly Constitutional to Define What “Arms” We Have a Right to Bear

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It’s Perfectly Constitutional to Define What “Arms” We Have a Right to Bear

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I happened upon this funny little video on Facebook. It is the scene of a disgruntled worker stomping into his former office. He stops when he gets to the main area of cubicles. His boss sees him pull a musket from his coat, aim, and fire, missing the boss. As the man uses his rod, bag of gunpowder, and steel ball to reload his 18th century weapon, everyone in the office runs away. The room is empty by the time the man has another shot ready to fire.

THIS IS WHAT GUNS WERE LIKE WHEN THE 2ND AMENDMENT WAS WRITTEN, reads the caption. AND IT’S WHY WE NEED NEW GUN LAWS ON THE BOOKS.

Inevitably, it received the comment I knew it would.

So protected speech under the first amendment only involves that written by quill and ink or printing press but not with ballpoint pens and computers.

Mmm, I love the smell of a false analogy in the morning. Smells like losing.

It’s a false analogy, as we do not have a right to quill, ink, press, musket, pistol, or rifle. We have rights to speech and arms.

The government shall not infringe on our rights to “speech” and “arms.” However, it is perfectly reasonable to define what “speech” and “arms” mean.

For instance, incitement to riot is not “speech.” Slander is not speech. “Fire!” in the crowded movie theater is not “speech.”

Likewise, we define what are “arms.” Nuclear weapons are not “arms.” Stinger anti-aircraft missiles are not “arms.” M-60 machine guns are not “arms.”

In both cases, the rights recognized in the Constitution are not absolute and are restricted where they amount to an unacceptable infringement of the rights of others, like right to life for people being killed in a riot, a theatre stampede, or a nuclear blast.

In both cases, those terms have been redefined in a completely Constitutional fashion. Some “speech” today was yesterday’s obscenity. What used to be illegal campaign financing is today’s “speech.” From 1994-2004, assault rifles were not “arms,” today, they are.

Even Justice Scalia, ardent 2nd Amendment fan and author of the Heller decision recognizing a right of the people to bear arms irrespective of the “well-regulated militia,” agrees with me there, in that the personal right to bear arms doesn’t preclude the government declaring some types of weapons aren’t “arms.”

Despite his deserved conservative reputation, Scalia left some gifts for liberals in his Heller ruling. He wrote that the right to bear arms had limits. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The late justice also more generally offered the belief that “like most rights, the right secured by the Second Amendment is not unlimited.” It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

So, the short video here isn’t saying that the only gun we should have a right to is a musket because that’s all the Founders had. It’s saying that when the Founders decided an armed citizenry was a good thing, they were drawing the line between freedom and safety when the stakes were vastly different.

Here’s the offramp where gun fetishists become Revolutionary Era scholars because they read some out-of-context and incomplete gibberish on the internet.

You’ll get the Washington meme about an “armed citizenry,” the one that claims the first president wanted the people armed to the teeth, ready to fight their own government.

Reading through Washington’s speech, it can clearly be seen that when Washington is talking about “a free people,” he means the union as a whole should be well-prepared for any threat to the country. He wasn’t talking about people being armed and ready to fight their own representatives. In fact, Washington’s viewpoint on what to do with armed American citizens who resist the government not through democracy but through armed rebellion would be driven home three years later.

Armed rebellion sprang up in 1794, and Washington personally led troops in the field in order to end the uprising. This is the only time in American history a sitting president has done so. The resistance quickly collapsed.

You’ll read explanations that “if musket was ‘arms’ to Revolutionary militia and AR-15 is ‘arms’ to modern militia, then our right to ‘arms’ includes AR-15s.” While it is refreshing to see gun fetishists embrace the first clause of the Second Amendment as having some value, their own logical equation doesn’t stand up to what’s been deemed constitutional, even by pro-gun rights justices.

Because the modern militia has fully-automatic M-16A1 rifles and the people don’t and that’s been deemed constitutional. If you’re arguing that muskets were the standard issue then and civilians should get the standard issue now, then you have to argue for civilian access to fully-automatic rifles.

Otherwise, you’re accepting that civilians only have rights to certain ‘arms,’ and that the current definition of ‘arms’ isn’t enough of an infringement of people’s right to life to justify changing the definition.

Finally, the line about the “ballpoint pens and computers” is kind of an own-goal. We’ve curbed speech in many ways since the advent of the internet, from anti-cyber-stalking and bullying laws, to criminalizing revenge porn, to prosecuting spam and hacking attacks, because the new technology revealed problems with our old laws that necessitated some redefinition.

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